Why Mueller may be fighting a public hearing on Capitol Hill
S E E D E D C O N T E N T
BY JONATHAN TURLEY, OPINION CONTRIBUTOR — 05/25/19 10:00 AM EDT
One of the more profound statements by Archie Bunker in “All In The Family” came when he corrected his daughter Gloria for questioning if God made a mistake: “God don’t make no mistakes, that’s how he got to be God.” There is a certain value in divine status. Natural disasters are dismissed as “God’s will,” and genetic defects as part of “God’s plan.”
Very few mortals ever warrant such faith, except perhaps Robert Mueller . Washington has deified him by popular acclamation. The times demanded it. It was simply not enough to demonize Donald Trump . That was done throughout the 2016 campaign, with the notable assistance of Trump himself. However, you cannot have a villain without a countervailing hero. Evil needs a point of reference, and Mueller became that reference. While Trump is portrayed as bombastic, impetuous, and juvenile, Mueller is painted as stoic, reserved, and professional. Indeed, as every new filing undermined the common narrative of Trump campaign collusion with the Russians, the commentators fell into a mantra of “just wait for Mueller.”
They are still waiting. Mueller has yet to testify despite Attorney General William Barr stating that he has no objections to him doing so. In the past week, it was confirmed that Mueller is resisting testifying in public. At the same time, House Judiciary Committee Chairman Jerrold Nadler indicated that his committee may indeed allow Mueller to appear in private with no subpoena, no cameras, and no cries of coverup. The media is remarkably uninterested in the reason for this demand from Muelller. After all, if you have no faith in Mueller, then you are an apostate within the Beltway.
So why is Mueller and his staff so worried and apprehensive about his answering questions in public? To answer that question, we must look at his report objectively, as agnostics rather than as advocates for one side or the other. Mueller has to address several glaring problems with how he carried out his responsibilities, including his reported failure to identify grand jury material, as requested by Barr and Deputy Attorney General Rod Rosenstein , which may have delayed the report.
The most troubling failure, however, was Mueller refusing to reach a conclusion on obstruction. He reached a conclusion on collusion and stated that his staff could “not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.” He then stated that he would not reach a conclusion on obstruction, without explaining why beyond citing past Justice Department memos stating that a sitting president cannot be indicted. His decision on this matter is incompatible with his mandate.
The special counsel is mandated to find possible evidence of criminal conduct. If Mueller is going to argue that he felt constrained by Justice Department memos, he was a failure as special counsel. I have argued, going back to my testimony in the Clinton impeachment hearings, that the Justice Department was wrong on those memos. Nothing in the Constitution says that a president has immunity from criminal charges. Nevertheless, one can accept these memos and still see the illogic in reading them as a bar to reaching conclusions as a special counsel.
First, any implied interpretation would not only contradict the governing federal regulations but contradict the express directions of the Justice Department superiors overseeing the special counsel. Indeed, both Barr and Rosenstein pushed Mueller to reach a conclusion on obstruction. When he failed to do so, they did it for him. No one has suggested that they violated Justice Department policy in reaching their conclusion.
Second, any reading of the two Justice Department memos dispels any notion of a limit on special counsels. Even accepting the flawed logic of the memoranda, they only speak to indicting a president while in office. Because such an indictment would tie up a president in litigation, it was argued that it would interfere with his functioning. Yet, nothing in that policy would stop a special counsel from making findings of criminal conduct. Indeed, Mueller made findings not just on collusion but on facts underlying obstruction. It is nonsensical to read memos on the indictment of a president to mean that you cannot find a basis for criminal charges.
Finally, this is what a special counsel does, as defined in the regulations, which outweigh any Office of Legal Counsel memos. A special counsel makes prosecutorial decisions. For two years, both Congress and the executive branch expected Mueller to reach conclusions. Before filing his report, Barr and Rosenstein expressly told him to do so. If he was not willing to do so, he should have stood aside when asked to come on.
Many of the commentators discussing the report in the media not only make excuses for Mueller but ignore that the report is not particularly impressive. The investigation by the FBI certainly was impressive and notable, especially on Russian hacking and trolling operations. However, the report itself reads like a long account of interesting vignettes with no prosecutorial conclusions. One obvious concern is that Mueller and his staff did not reach a conclusion on obstruction because they could not bring themselves to give Trump a clean bill of health on criminal conduct.
The statement released by Barr was damning to be sure. Even if Trump was not found to have acted in an indictable or impeachable fashion, he was found to have acted in a contemptible fashion. However, reaching a conclusion in both volumes may have proven too much for Mueller after months of abuse by Trump. If this was the motivation, then the greatest political offense established by the special counsel was indeed his own.
Mueller may not want to answer any of these questions in public. Indeed, he seemed to have trouble answering even in private. As Barr tellingly testified to the Senate: “Special counsel Mueller stated three times to us in that meeting, in response to our questioning, that he emphatically was not saying that,” but for the Office of Legal Counsel opinion, “he would have found obstruction.” He continued: “We did not understand exactly why the special counsel was not reaching a decision. When we pressed him on it, he said that his team was still formulating the explanation.”
That is not the Mueller many of us encountered 30 years ago. It is bizarre that he would meet with the attorney general and the deputy attorney general about his conclusions but not have a clear explanation on not reaching conclusions. In the past, the idea of Mueller saying his team was working on an explanation after two years would have been laughable.
The House Judiciary Committee is not placing conditions on Mueller testifying as it did with Barr, who had been willing to appear in public until the committee added a condition guaranteeing that he would not by insisting that he be questioned by legal staff, like a mob “torpedo” in the Kefauver hearings. When asked why they would forgo Barr testifying by insisting on such a condition, members said the special counsel report was so complicated that legal staff needed to question the witness.
Suddenly, it seems, the report has become less complicated. There is no demand for a public hearing and, apparently, no demand for legal staff to question Mueller. He has much to explain, and the public is entitled to hear it without the usual partisan filters. Mueller can still fulfill his mandate and redeem his legacy. After all, to err may not be divine, but it is human.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.
Article is LOCKED by author/seeder
Tags
Who is online
319 visitors
Mueller won't testify in public.
Yucky weather here .. been wandering about reading about special counsels, I am beginning to think that Mueller has nothing to testify about - his conclusions or lack there of are in his report. What good is his testimony, he cannot tell Congress how to proceed, he cannot change his mind and say 'I now conclude there was obstruction' …
Mueller really owes NO one an explanation, especially not congress. Mueller filed his report with the Attorney General, his job is now done! Yet there are many that think Mueller owes the American people an explanation .. translation .. the (D)'s need an explanation (?) another fishing expedition for 'impeachable evidence' in Mueller's explanation (?) just curious
Here is an interesting read..
Correct. He testifies and he has to take questions from Republicans as well as democrats. There is nothing to be gained for Mueller. For a man that actually has testified many times before congress, he is suddenly shy about giving public testimony.
translation .. the (D)'s need an explanation (?) another fishing expedition for 'impeachable evidence' in Mueller's explanation (?) just curious
It appears that will take place with or without Mueller.
I read the Hill piece. It makes sense.
Shy? : )
He intentionally left peeps hanging .. the (D)'s had bet their 'lives' on Mueller having an ace in the hole - a secret witness perhaps that would put all the pieces together into a nice lil picture .. it did not happen, he is in the hot seat now with NO reason to answer questions, his job is complete and he accomplished basically nothing!
I was so patient waiting for the Mueller report .. it was going to have all the answers .. Pffft!
I tried to warn them, didn't I?
Seems to me Mueller will now be demonized and thrown under the bus by the Dems because the report did not say exactly what the Dem wanted it to say, which is to find President Trump 100% guilty and culpable for everything they believe.
Yup, right into the trash can with Hillary Clinton and Michael Avenatti
There is already an article on NT claiming that he let America down
The above two paragraphs state one thing to me regarding the Democrats. They know there is no collusion and there is no obstruction, what they wanted is someone who is able to speak legalese to confuse the issue even further when they were questioning Barr to embarrass him and to make it seem like there was obstruction and collusion. The reason Mueller could not reach a conclusion on obstruction is simple, his entire team were Hillary sycophants and he didn't want to embarrass them by completely exonerating Trump. The sad part is he is embarrassing himself and his team by not being honest.
With the power and money Mueller had to investigate Trump, one would have thought he would have indicted the proverbial ham sandwich. It turns out Strzok was right on day one - "there's no there there!"
The conclusions of the report could have been filed a long time ago. Mueller waited for the mid term election to hand his report to House dems. He is a national disgrace!
It also seems Barr has had to deal with Mueller once before years ago.
Your comment is nonsensical. I really worry for this country when we have so many people who lap up the nonsense on right wing media. Seriously, this country is headed for a horrible reckoning.
Why is it nonsensical?
Help me see the light
As usual, he can't
The resident gas lighter
does the sea lion thing once again,
Be happy that Perrie is a nice lady who wants everyone to have a voice. Otherwise your useless comments would be shit canned where they belong. On the worst day Ive ever had on a forum I could make mincemeat out of you.
It's really a pity what people like you have been allowed to do to this forum.
I was replying to Tom. Try and follow the numbers.
And, you were asked a question that I would love to know the answer to. Why is my comment nonsensical? The Democrats couldn't understand (so they claimed) the report so had to have a lawyer ask Barr questions about the report, and now understand the report so well that Mueller can be asked questions directly from the Committee not a lawyer. The only conclusion is that they wanted to muddy the waters by asking Barr questions in legalese so that while the answers reflected what was in the report, the questions would actually shed doubt on the veracity of those answers. Remember, legalese is a lot of double-speak that has to be interpreted before most people actually understand what is being said. Don't believe me? Read the End-User Agreement on your computer's operating system.
At best, this comment is unsupported bs.
Of all the people who are in the narration concerning the events categorized by Mueller as possible obstruction of justice by the president, please point out the ones that say Mueller is misrepresenting what they said?
Has McGahn said Mueller is lying about what McGahn told the investigators? Has Hope Hicks said Mueller is lying? Has Jeff Sessions said Mueller is mistaken? Have any of them?
No.
Mueller very specifically says that he is not allowed as a special counsel to indict the president. He also very specifically says that Congress can look into it.
I read some of your comments, and what I usually see is someone who gets his information from dubious sources.
No personal attacks here. Address what Greg says, don't make it personal.
I'm being nice too
I'm not apologizing for shit.
I'm through being nice
Oh, by the way Vic, this is what Greg Jones said
Sounds pretty personal to me, but I noticed you had no warning for him. No problem.
You are scaring me man. s.
Ya, after you insulted him.
Vic, the only comment I have on this seed that was addressed to Greg Jones was the one after he insulted me.
Why are you guys always wrong? You ought to look into that.
You were even sarcastic with me:
"Try and follow the numbers."
I warned you in a nice way, but you couldn't shut your mouth, thus the tickets.
Why are you guys always wrong?
That's funny
Seems to me the glaring question for Robert Mueller is why there weren't any indictments related to conspiracy or obstruction related to activities of the Trump campaign. The arguments concerning indicting a sitting President only applies to the President and no one else. The Mueller team didn't indict anyone concerning activities of the Trump campaign. Are we to believe that only Donald Trump and no one else was involved?
Robert Mueller created a lot of smoke that can be used for political purposes. But where's the fire?
Mueller made NO conclusion that obstruction occurred .. it is not a committee in congress that then gets to interpret Mueller's intent for not having done so .. Barr and Rosenstein did their jobs - obviously not a very popular decision was made .. but they still did their job. Like it or not, it is what it is... no matter how controversial it is.
Out wandering around the interweb .. I ran across an interesting, albeit dated article...
I do not think Mueller was prevented from reaching a conclusion on obstruction, he simply did not reach one - yet taking any action against a seated president is restricted
It is going to be interesting to see things unfold .. might not be pretty though!
Peace